193 Ind. 195 | Ind. | 1923
This is a suit for injunction instituted by the appellee, founded upon his verified written statement, filed with the auditor of the county, protesting the legality of a special election for the removal of the county seat of Jennings County, praying that appellants be restrained from continuing the threatened acts enumerated, and for an order of the court impounding the
July 3, 1916, Joseph D. Cone and others filed with the auditor of Jennings County a petition praying for an election upon the question of relocating the county seat of said county at North Vernon, in response to which an election was ordered to be held September 26, 1916. On July 17, 1916, Crist and others sued for a temporary injunction to prevent the holding of such election, the application for which was denied, which denial, on appeal to the Supreme Court, was affirmed. (Crist v. Molony [1918], 187 Ind. 614.) Thereafter, the plaintiffs dismissed their said suit before final judgment, which was followed by the order of the board of commissioners, by virtue of the petition of Cone and others that the election be held July 22, 1919, upon which date, the election was held. The canvass of the vote, as certified to the auditor of said county by the clerk of the circuit court, showed that 2,232 votes were cast for, and 1,404 were cast against, the relocation of said county seat. August 1, 1919, appellee filed with the auditor of said county his verified' statement in writing, protesting the legality of said election, the correctness of the returns, and of said certificate, and contesting said election. The auditor thereupon issued a notice to the board of commissioners to meet on August 18, 1919, to hear said contest, but the said board did not meet on said day pursuant to such notice. Thereafter, September 2, 1919, appellee appeared before the board of commissioners at its regular session and demanded that it hear, or fix a date for the hearing of, the said contest, which demand was refused. October 14, 1919, appellee filed his complaint in this action pray
The error assigned is: that the trial court erred in grantiiig the temporary injunction. Appellants, to sustain the error assigned, contend: (1) the special act under which the election was held contains no provision which authorizes a contest of the result of such election as certified by the clerk of the circuit court; (2) the general election laws which provide for the contest of an election to a public office, do not authorize a statutory contest of the special election in question; (3) the special act in question, not expressly authorizing a contest of an election thereunder, no contest can be held under the general statutes governing elections to public offices; (4) the board of
In order that such special election may be contested under the provisions of the general election law, the'special act for such special election must provide therefor. The only language pointed to which might grant such right is: “Such election shall be conducted in all respects, returns made, votes canvassed and certified, and results declared, according to the law regulating general elections.” Acts 1913 p. 906, §6.
A former act which provided for the holding of a special election, provided that: “in all matters and proceedings not herein otherwise specified, all the provisions, * * * of the general election laws of the state shall apply as far as the same are applicable.” §8323b Burns 1914, Acts 1911 p. 369, §10. It will be noted that the provision referred to of the act of 1911 is quite similar to that part of §6 of the act in question, which says: “Such election shall be conducted in all respects * * * according to the law regulating general elections.” According to a long line of cases decided by this court, the appellee herein is not precluded from contesting this election for the reason that the act permitting the election does not contain the provision to contest the election within itself, or that it does not specifically authorize a contest under the
Concerning a special election, held by virtue of said act of 1911, Acts 1911 p. 369, supra, it has been held that the board of commissioners had jurisdiction and authority to go behind the election returns, and inquire into the truth of the same, without the aid of the general election law pertaining to contests of elections, from which it is concluded that the board of commissioners may go behind the returns of a special election held by virtue of the act in question, and inquire into the truth of the same, and find the number of legal votes cast, and adjudge the result of such election, and that it was not the legislative intention that the general election law which relates to contests should apply. Galvin v. Logan (1914), 182 Ind. 647; Jay v. O’Donnell (1912), 178 Ind. 282; Strebin v. Lavengood (1904), 163 Ind. 478; Goddard v. Stockman, Treasurer (1881), 74 Ind. 400.
The conduct of the election as provided in §6 (Acts 1913 p. 906) has relation to the use of the official machinery to institute and carry on the voting, where not otherwise provided for in the act,
It may be noted that the act itself is silent as to any direct provision for a contest of the result of such special election. The general election law concerning contest of elections pertains particularly to any person declared elected by popular vote, and the person whose election is contested shall be known in a contest as the contestee, and provides for notice to him! It will be perceived that if we grant that the word “person” is broad enough to include the defeated entity in an election of this kind, it would be quite impossible to give notice as provided by law to such- defeated entity. The legislature knew that, in all special elections ordered by the board of commissioners, such board might legally go behind the returns of any such special election to contest the same, as construed by this court, and without notice to anyone of such action. Strebin v. Lavengood, supra.
Appellants maintain, under their fourth contention, as herein set forth, that appellee, by virtue of the proceeding instituted by him before the county commissioners, through his objection to the certification of the vote as made by the clerk of the Jennings Circuit Court, has grounded such proceeding solely upon the provisions of the general election laws governing contest of such election of public officers, and that, having failed to give notice under the general election law to each one of the persons who were petitioners for the removal of such county seat, that thereby the county commissioners had no juris die
The board had jurisdiction of the subject-matter, by virtue of the proceeding, founded upon the petition for such relocation, and also, by virtue thereof, over each petitioner without a special notice of each step taken in such proceeding. By this reasoning, jurisdiction was complete in the board to go behind the returns of the special election to determine the correctness of the certified result.
As to procedure, appellants say, in their brief, “that the board of commissioners, may, and on proper application must, go behind the returns made and certified to it as the result of such election,” but, at this juncture, appellants maintain, that by virtue of Acts 1913 p. 906, §9, the board of commissioners could acquire jurisdiction to so contest the election only by meeting in special session at the call of the auditor. To adhere to this contention would permit the right of contest to those opposed to, and deny a contest to those in favor of, the relocation, for the very patent reason, that the special meeting of the board cannot exist except upon the result of sixty per cent, of the vote in favor of relocation. The proceeding begun by the petition to relocate is before the board continually until the expiration of the time of the losing party to
It is therefore held that the board of commissioners has jurisdiction to review and contest such special election, at a special meeting to be called by the auditor, as provided by this act, either upon its own initiative or by virtue of the proceeding instituted by appellee upon his verified statement in writing protesting the special election, in which appellee bases his right in this action.
It is, therefore, ordered that so much of the judg